COMMONWEALTH OF VIRGINIA v. HARLEY

OPINION BY CHIEF JUSTICE HARRY L. CARRICO
FROM THE COURT OF APPEALS OF VIRGINIA

Present: All the Justices

In this case, the defendant, Eugene Nakia Harley, was convicted
in the Circuit Court of the City of Virginia Beach of one count
of robbery, two counts of abduction, and three counts of the use
of a firearm in the commission of a felony. He was sentenced to
serve a total of forty-three years in the penitentiary, with
twenty-five years suspended.
Harley appealed his convictions to the Court of Appeals, raising
the sole question whether the trial court erred in denying his
motion for a transcript of a suppression hearing at state
expense. In a published opinion, the Court of Appeals held that
Harley was constitutionally entitled to a free transcript of the
suppression hearing and, therefore, that the trial court erred in
denying Harley’s motion with respect thereto. Harley v.
Commonwealth, 25 Va. App. 342, 350, 488 S.E.2d 647, 650
(1997). However, the Court of Appeals found that there were
"no significant discrepancies between the witnesses’
testimony at the suppression hearing and their testimony at
trial" and that "[t]he evidence of [Harley’s] guilt was
overwhelming." Id. at 351, 488 S.E.2d at 651.
Accordingly, the Court of Appeals held that the trial court’s
error in denying Harley a free transcript was harmless, and the
court affirmed Harley’s convictions. Id.The Commonwealth filed a petition for appeal with this Court,
seeking reversal of the judgment of the Court of Appeals insofar
as it held that "the trial court was constitutionally
obligated to provide Harley with a free copy of his suppression
hearing transcript." Harley filed a brief in opposition in
which he assigned cross-error to the Court of Appeals’ ruling
that the failure of the trial court to provide him a transcript
at state expense was harmless error. In his brief in opposition,
Harley also attacked the Commonwealth’s standing to appeal the
judgment of the Court of Appeals.
We awarded the Commonwealth an appeal and refused Harley’s
assignment of cross-error. He has not participated further in
this proceeding.
On the question of standing, the Commonwealth asserts that it is
a "party aggrieved" within the meaning of Code
? 17-116.08, which provides in pertinent part that
"any party aggrieved by a final decision of the Court of
Appeals, including the Commonwealth, may petition the Supreme
Court for an appeal." The Commonwealth says that "[t]he
decision of the Court of Appeals, if not modified, inevitably
would lead to the squandering of substantial amounts of public
monies, inasmuch as defendants would be constitutionally entitled
to transcripts of a host of pre-trial proceedings in order,
supposedly, to honor their rights to a fair trial and due
process."
The Commonwealth states on brief that the word "’aggrieved’
is defined in the dictionary as ‘feeling distress or affliction’
or ‘treated wrongly; offended.’ American Heritage Dictionary
87 (2d ed. 1991)." The Commonwealth also notes that in Virginia
Beach Beautification Commission v. Board of Zoning Appeals,
231 Va. 415, 344 S.E.2d 899 (1986), we elaborated upon the
meaning of the word "aggrieved" as follows:
The term "aggrieved" has a settled meaning in Virginia
when it becomes necessary to determine who is a proper party to
seek court relief from an adverse decision. . . .
The word "aggrieved" in a statute contemplates a
substantial grievance and means a denial of some personal or
property right, legal or equitable, or imposition of a burden
or obligation upon the petitioner different from that suffered by
the public generally.

Id. at 419-20, 344 S.E.2d at 902-03 (emphasis added)
(citation omitted). The Commonwealth then argues that because the
decision of the Court of Appeals "will have the effect of
imposing substantial new financial burdens on the Commonwealth to
provide transcripts to indigent defendants who previously would
not have been entitled to them, the Commonwealth has standing in
this appeal."
Finally, the Commonwealth submits that "even though [it]
ultimately prevailed in the Court of Appeals, it nevertheless is
an ‘aggrieved’ party under [? 17-116.08]." The
Commonwealth argues that the statute does not state that
"the losing party" or "the party that did not
prevail" may seek review in this Court. Instead, the
Commonwealth says, the statute provides only that "any party
aggrieved" may appeal, and the use of this less restrictive
language evinces "the intent of the General Assembly to
authorize appeals by the Commonwealth, at least under the
circumstances of this case."
We do not agree that the Commonwealth is aggrieved by the Court
of Appeals’ ruling with respect to the issue of Harley’s
entitlement to a free transcript of his suppression hearing. That
issue was rendered moot by the Court of Appeals’ further ruling
that the error in the trial court’s denial of a free transcript
was harmless. As a result, the Commonwealth was excused from
providing Harley with a free transcript of his suppression
hearing. So far as this case is concerned, therefore, and we can
be concerned only with this case, the harmless error ruling
avoided the "imposition of a burden" upon the
Commonwealth and the "squandering of . . . public
monies" on "transcripts . . . of pre-trial
proceedings."
The Commonwealth is apprehensive, of course, about the effect the
Court of Appeals’ decision will have upon future cases. But the
Commonwealth’s concerns are hypothetical and can only be based,
at best, upon speculation and conjecture. Its apprehension,
therefore, is not sufficient to qualify it as a "party
aggrieved" within the meaning of Code ? 17-116.08 and
the explication given the word "aggrieved" in the case
of Virginia Beach Beautification Commission v. Board of Zoning
Appeals, supra. Neither the statute nor the case can
be read to provide the Commonwealth a present appeal based upon
the apprehension that it will suffer the imposition of some
future burden.
In reality, the Commonwealth invites this Court to render an
advisory opinion on a moot question based upon speculative facts.
This is an exercise in which the Court traditionally declines to
participate. "The reason . . . is that the courts
are not constituted . . . to render advisory opinions,
to decide moot questions or to answer inquiries which are merely
speculative." City of Fairfax v. Shanklin, 205 Va.
227, 229-30, 135 S.E.2d 773, 775-76 (1964); seealsoRidgwell v. Brasco Bay Corp., 254 Va. 458, 462-63, 493
S.E.2d 123, 125 (1997); Blue Cross & Blue Shield v. St.
Mary’s Hosp., 245 Va. 24, 36, 426 S.E.2d 117, 123-24 (1993).
Accordingly, we decline the Commonwealth’s invitation to render
an advisory opinion in this case. Instead, we will await the
arrival of a case in which a conviction has been reversed for the
failure of a trial court to provide an indigent defendant with a
free transcript of a pretrial hearing.
In the meantime, because in the present case the Commonwealth is
not a "party aggrieved" within the meaning of Code
? 17-116.08, we will dismiss this appeal.Appeal dismissed.